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Statement of Undisputed Facts

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Statement of Undisputed Facts UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) VIACOMEDY COM INTERNATIONAL PARTNERS, INC., )) COUNTRY MUSIC TELEVISION, INC., ) PARAMOUNT PICTURES CORPORATION, ) liC,and BLACK ENTERTAINMENT TELEVISION) ) ) Plaintiffs, ) Case No. 1:07-cv-02103 (LLS) v. ) (Related Case NO.1 :07-cv-03582 (LLS) ) ECF Case YOUTUBE INC., YOUTUBE, LLC, and ) GOOGLE, INC., ) ) Defendants. ) ) ) VIACOM'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY AND INAPPLICABILITY OF THE DIGITAL MILLENNIUM COPYRIGHT ACT SAFE HARBOR DEFENSE Stuart J. Baskin (No. SB-9936) Paul M. Smith (No. PS-2362) John Guelì (No. JG-8427) Willam M. Hohengarten (No. WH-5233) Kirsten Nelson Cunha (No. KN-0283) Scott B. Wilkens (pro hac vice) SHEARMAN & STERLING LLP Matthew S. Hellman (pro hac vice) 599 Lexington Avenue JENNER & BLOCK LLP New York, NY 10022 1099 New Y ork Avenue, NW Telephone: (212) 848-4000 Washington, DC 20001 Facsimile: (212) 848-7179 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 Susan 1. Kohlmann (No. SK-1855) JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 891-1690 Facsimile: (212) 891-1699 March 18,2010 Attorneysfor PlainttfJ TABLE OF CONTENTS i. VIACOM'S OWNERSHIP OF THE WORKS IN SUIT ................................................... 1 II. INFRINGEMENT OF THE WORKS IN SUIT ON YOUTUBE ...................................... 2 II. DEFENDANTS' KNOWLEDGE AND INTENT CONCERNING INFRINGEMENT ON YOUTUBE...................................................................................................................2 A. The YouTube Founders' Knowledge and Intent Concerning Infringement on YouTube ................................................................................................................. 2 B. Google's Knowledge and Intent Concerning Infringement on YouTube............. 31 IV. DEFENDANTS' DIRECT FINANCIAL BENEFIT FROM INFRINGEMENT ............ 53 V. DEFENDANTS' RIGHT AND ABILITY TO CONTROL INFRINGEMENT.............. 62 VI. DEFENDANTS' CONDUCT AS DIRECT INFRINGEMENT AND AS BEYOND STORAGE AT THE DIRECTION OF A USER ............................................................. 75 LEGEND For the purposes of Via com's Statement of Undisputed Facts in Support ofIts Motion for Partial Summary Judgment on Liabilìty and Inapplicabilìty of the Digital Millennium Copyright Act Safe Harbor Defense, the following abbreviations shall be used: "Hohengarten DecL." shall refer to the declaration ofWì1iam M. Hohengarten, dated March 5, 2010, filed herewith. "Hohengarten i1_ & Ex. _," shall refer to the paragraphs of the Hohengarten Declaration and the Exhibits attached thereto, respectively. Any Exhibit attached to the Hohengarten Declaration that was produced during the course of this litigation and marked with Bates numbers is identified by its beginning Bates number, followed by a pinpoint citation. Pinpoint citations shall refer to the page number(s), and paragraph or line numbers, of the cited document. In some instances Hohengarten Declaration Exhibits have been manually paginated for ease of the Court's reference. Where used, parentheticals indicate the nature of the item cited - e.g., deposition transcripts ("Dep.") or other declarations ("DecL."). Thus, by way of illustration, "Hohengarten i17 & Ex. 4, G00001-00011355, at G00001-00011356" would refer to Exhibit 4 to the Hohengarten Declaration, which has the beginning Bates number GOOOO 1- 00011355, and would refer specifically to the page of that Exhibit marked with Bates number G00001-00011356. And, "Hohengarten i1366 & Ex. 332 (Eun Dep.) at 200:1-10" would refer to the deposition of Google employee David Eun, which is referenced at Paragraph 366 of and attached as Exhibit 332 to the Hohengarten Declaration. "Solow Decl." shall refer to the declaration of Warren Solow, a representative of Via com, dated March 3, 2010, filed herewith. The Solow Declaration is attached as Exhibit 2 to the Hohengarten Declaration. 11 "SUF i1" shall refer to specific paragraph numbers in Viacom's Statement of Undisputed Facts. II Pursuant to Local Civil Rule 56.1, Viacom submits the following Statement of Undisputed Facts in Support ofIts Motion for Partial Summary Judgment on Liabilìty and Inapplìcabilìty of the Digital Mì1ennium Copyright Act Safe Harbor Defense. UNDISPUTED FACTS i. VIACOM'S OWNERSHIP OF THE WORKS IN SUIT T" ., iTT.". , ~ 1. Viacom creates and acquires exclusive Hohengarten Dec1. i13 & Ex. 2 (Solow rights in copyrighted audiovisual works, Dec1. i12). including motion pictures and television programming. 2. Viacom distributes its copyrighted Hohengarten Dec1. i13 & Ex. 2 (Solow television programs and motion pictures Dec1. i13). through various outlets, including cable and satellite services, movie theaters, home entertainment products (such as DVDs and Blu-Ray discs) and digital platfonns. 3. Viacom owns many of the world's best Hohengarten Dec1. i13 & Ex. 2 (Solow known entertainment brands, including Dec1. i14). Paramount Pictures, MTV, BET, VH1, CMT, Nickelodeon, Comedy Central, and SpikeTV. 4. Viacom's thousands of copyrighted works Hohengarten Dec1. '1 3 & Ex. 2 (Solow include the following famous movies: Dec1. i15). Braveheart, Gladiator, The Godfather, Forrest Gump, Raiders of the Lost Ark, Breakfast at Tifany's, Top Gun, Grease, Iron Man, and Star Trek. 5. Viacom's thousands of copyrighted works Hohengarten Dec1. i13 & Ex. 2 (Solow include the following famous television Dec1. i16). shows: The Daily Show with Jon Stewart, The Colbert Report, South Park, Chappelle's Show, Spongebob Squarepants, The Hils, iCarly, and Dora the Explorer. 6. Viacom owns or controls the copyrights or Hohengarten Dec1. i13 & Ex. 2 (Solow exclusive rights under copyright in the Decl. iiii 7 -14, 17). 3,085 audiovisual works identified in Exhibits A-E to the Solow Dec1. filed herewith ("Works in Suit"). II. INFRINGEMENT OF THE WORKS IN SUIT ON YOUTUBE IT'.'. ,. "--' -F 7. Defendants have reproduced and distributed Hohengarten Dec1. i13 & Ex. 2 (Solow for viewing, and performed on the Dec1. i1i116-26). Y ouTube website, 62,637 video clìps that infringe the Works in Suit ("Clìps in Suit"); the Clìps in Suit are identified in Attachment F to the Solow Dec1. filed herewith. 8. The Clips in Suit were collectively viewed Hohengarten Dec1. i14. on the Y ouTube website more than 507 mì1ion times. 9. Viacom has not authorized the distribution Hohengarten Decl. i13 & Ex. 2 (Solow or reproduction or performance of the Clìps Dec1. i126). in Suit on Defendants' YouTube.com service. III. DEFENDANTS' KNOWLEDGE AND INTENT CONCERNING INFRINGEMENT ON YOUTUBE A. The YouTube Founders' Knowledge and Intent Concerning Infringement on YouTube 10. YouTube was founded in February 2005 by Hohengarten i1393 & Ex. 356 (January 5, Chad Hurley, Steve Chen, and Jawed 2007 Declaration of Steve Chen in Karim. Support of (Y ouTube' s J Motion for Summary Adjudication of (Y ouTube' s J First Affnnative Defense of DMCA Safe Harbor, Robert Tur v. You Tube, Inc., Case No. CV 06-4436 FMC) ("declaration of Steve Chen dated January 5, 2007") at i12. 2 Hohengarten i1346 & Ex. 312 (C. Hurley Dep.) at 12:21-13:7. 11. Prior to founding YouTube, Chad Hurley, Hohengarten i1222 & Ex. 204, Steve Chen, and Jawed Karim worked JK00009887, at JK00009890-91. together at the Internet start-up PayPa1. Hohengarten i1346 & Ex. 312 (c. Hurley Dep.) at 16:20-17:16). Hohengarten i1402 & Ex. 365. Hohengarten i1347 & Ex. 313 (Karim Dep.) at 8:24-9:14,16:3-16:23. 12. When eBay acquired PayPal for $ 1.5 billìon Hohengarten i16 & Ex. 3, G00001- in 2002, PayPal's stockholders, including 00303096, at G00001-00303100. _ Chad Hurley, Steve Chen, and _, received Hohengarten i1346 & Ex. 312 (C. Hurley substantial profits from the dea1. Dep.) at 19:11-21:12. 13. The YouTube website first became publicly Hohengarten i1393 & Ex. 356 (declaration accessible in a "beta" version in April 2005. of Steve Chen dated January 5,2007) at i1 3. Hohengarten i17 & Ex. 4, G00001- 00011355, G00001-00011357. 14. YouTube publìcized the "official launch" of Hohengarten'1 307 & Ex. 279 (YouTube the YouTube website in December 2005. page entitled "YouTube Company History"). 15. A December 15, 2005 YouTube press Hohengarten i1299 & Ex. 271 (YouTube release described Y ouTube as a "consumer press release dated December 15, 2005). media company" that "delìver( s J entertaining, authentic and infonnative videos across the Internet." 16. On October 9,2006, Google announced its Hohengarten i1304 & Ex. 276 (Google agreement with Y ouTube for Google to press release dated October 9,2006). acquire YouTube for $1.65 billion in Google stock. 17. Google's acquisition of You Tube closed on Hohengarten i1305 & Ex. 277 (Google 3 November 13, 2006. press release dated November 13, 2006). Hohengarten i1366 & Ex. 332 (Eun Dep.) at 58:3-14. 18. In connection with the acquisition, Google Hohengarten i1305 & Ex. 277 (Google issued an aggregate of 3 ,217,560 shares, press release dated November 13, 2006). and restricted stock units, options and a warrant exercisable for or convertible into an aggregate of 442,21 0 shares, of Google Class A common stock. 19. On November 13, 2006, the closing date of Hohengarten i1306 & Ex. 278 (screenshot the transaction, Google Class A common of Go ogle's finance webpage showing that stock closed at a price of $481.03; at that the closing price for Google shares on price, the 3,659,770 shares issued and November 13, 2006 was $481.03). issuable in connection with Google's acquisition of You Tube
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